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Judge dismisses lawsuit filed over Kennedy Park Belvedere

By Clarence Fanto, Special to The Eagle

Posted:
07/08/2013 06:14:55 PM EDT

Updated:
07/09/2013 12:48:56 PM EDT

Architect Michael Fieldman is seen visiting the Kennedy Park Belvedere on June 1, 2012, the one-year anniversary of its dedication. Fieldman commissioned the belvedere as a tribute to his son. On Monday, a judge dismissed a lawsuit filed by a group of citizens seeking its removal. (Ben Garver / Eagle file photo)
(Ben Garver)

LENOX - A judge on Monday dismissed the lawsuit against the town filed by 20 citizens seeking the removal of the Kennedy Park Belvedere.

Word of the ruling by Suffolk County Superior Court Judge Heidi Brieger was relayed to Town Hall late Monday afternoon by attorney Jonathan Silverstein of Kopelman & Paige, the municipal law firm in Boston that has been defending the town in the lengthy legal battle.

The monument on the park's southern overlook was dedicated on June 1, 2011, in memory of Dr. Jordan Fieldman, a BMC physician and devotee of the park who died of cancer in 2006 when he was 38. The memorial, approved by town boards, was funded by his father, New York architect Michael Fieldman, who paid $140,000 for the installation.

"We're all very happy that it's been resolved and that we can move forward," said acting co-Town Manager Mary Ellen Deming. "Now we're making sure that we are very transparent and that everyone in town knows what's going on."

The group of citizens led by local business owner Sonya Bykofsky had argued that the memorial violated the Scenic Mountain Act, a town bylaw based on a state law which regulates development at elevations above 1,400 feet that can affect views of a site.

The citizens also contended that open meeting laws had been skirted or violated during the approval process for the installation in autumn of 2010.

"Perhaps, the case helped, in its own way," Deming added. "We can always improve on things.

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Bykofsky, contacted on Monday afternoon, declined comment on the matter pending discussions with the group's attorney, Robert N. Meltzer, based in Concord. Meltzer was not reachable for comment at his office.

But on June 18, after the case was first argued in the Boston court, Meltzer told The Eagle that if the judge were to dismiss the lawsuit, he intended to appeal to a higher court.

"I certainly hope the town can move forward now," said Select Board Chairman David Roche. "This is a tremendous relief. It's been a long, drawn-out process and I look forward to working with everyone in town to resolve issues and put this behind us."

Roche said he was "delighted but not surprised" by the judge's ruling. "It vindicates the actions the various down boards have put in over the years."

The board chairman said that "we've done more to keep townsfolk aware of what's going on since this whole incident happened."

"As a Select Board, we have become more inclusive and transparent," Roche said, noting that decisions on major issues are delayed for a week or two after board meetings in order to maximize public input.

As for any potential appeal of Monday's ruling by the citizens' group, Roche said, "I want this thing to be over, It concerns me. I don't see what grounds the individuals would have after this court dismissed it.

"I think working with the town and dropping lawsuits would be their best course of action," he added.

Former Town Manager Gregory Federspiel, contacted in Manchester-by-the-Sea where he is the new town administrator, welcomed the judge's decision as a vindication for Town Hall.

The judge "reaffirmed what we had been saying, that no laws were broken and we never intended to hide anything from the public," Federspiel said. "It would have been better to get Conservation Commission approval ahead of time, but that was an oversight that was corrected." The commission ruled subsequently that the memorial did not violate the Scenic Mountain Act.

"Hopefully, we can put this behind us and the town can move forward," Federspiel said.

Selectman Kenneth Fowler said the decision "has been a long time coming."

"Rather than feeling like they lost, the other side should feel they've accomplished quite a bit," Fowler said. "We've changed our policy and we give two-week notice to the public on any decision we make affecting public land, and that's a big win for them.

"We still all live in the same town, and I hope this ends it so no more tax dollars are spent," Fowler added. He attended the June 18 hearing in Boston where attorneys for both sides argued their cases before the judge.

The judge "took her time with it, asked a lot of questions," said Fowler. "I'm sure she did her homework and I hope it's clear to the citizens group that the suit caused us to change our policy. Let's consider this a done deal, since we have a lot of other things to deal with and we don't need this hanging over our heads any longer."

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